Carpenter v. State

Appellant was convicted in the County Court of Kaufman County for the unlawful sale of whisky in a dry area, with punishment assessed at confinement in the county jail for a period of 120 days.

Attack is made by the appellant on the record of the election as introduced in the case in which it is contended that the election was not regularly held. No attack may be made on the election in this proceeding. Ferguson v. State,110 S.W.2d 61.

Again, it is the principal contention on this appeal that the local option law is not in force in Kaufman County at the present time. This question was recently decided by this court in the case of Odell Stephens v. State, No. 20,470, from Brown County, (case not yet reported). (Page 43 of this volume). The contention made by the appellant in this case was not sustained in that opinion. A motion for rehearing was presented and is this day overruled. Accordingly, appellant's Bill of Exception No. 2, together with the other bills relating to the same subject, are overruled.

Another question presented by the appeal is that the representative of the Liquor Control Board who testified to having purchased whisky from the appellant in this case was an accomplice and that a portion of his testimony was not corroborated by other evidence and that, therefore, the conviction should not stand. This question was likewise considered by this court in the case of Stevens v. State,110 S.W.2d 906, and the holding there was contrary to the contention of the appellant on this appeal. Under the authority of that opinion the appellant's Bill of Exception No. 12 is overruled.

In Bill of Exception No. 13, appellant complains of the following instruction contained in the court's charge: "You are instructed that under the law of Texas it is unlawful for any person to sell whisky in a dry area."

The ground of the objection is that it is not unlawful for "any person" to sell whisky in a dry area. We see no reason why the jury might have been mislead by such instruction. Inasmuch as appellant made no contention that he was authorized by any provisions of law to sell whisky in Kaufman County, we do not think he is in a position to complain of this instruction to the jury.

Appellant also complains in Bill of Exception No. 16 of *Page 357 the action of the county judge in answering a question of the jury, through the sheriff, as to which paper they should write their verdict on. The complaint is that neither the appellant nor his counsel was present when this communication was received and the answer returned by the judge. The appellant was being tried for a misdemeanor, and the rule is different from that in a felony case. Furthermore, this bill was qualified by the court with the statement that this oral instruction was given to the jury direct and not to the sheriff at the time the argument was closed and when he instructed them to retire to consider their verdict, all of which, the qualification says, was done in the presence and hearing of the defendant and his counsel and without any objection being filed at that time. This qualification is a part of the bill and must be so considered by this court. By it no error appears, even if it were a felony prosecution.

There are other bills of exception in the record complaining of the refusal of the court to admit certain testimony of two girls who were called by the appellant as witnesses. A part of the evidence contained in each bill was admissible. Definitely, a large portion of the evidence complained of in each bill was properly excluded, and we are, therefore, precluded from considering the bill even if some portion of the evidence should be held to be admissible and wrongfully excluded. Branch's Ann. Penal Code, p. 135, sec. 211; Tex. Jur., Vol. 4, p. 305, sec. 212, and cases there cited.

No errors appearing in the record, the judgment is affirmed.

ON MOTION FOR REHEARING.